By Damian D. Capozzola, Esq.
Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Tim Laquer, 2015 JD Candidate
Pepperdine University School of Law
News: The patient, a 74-year-old man, sought treatment for a cough. His physician ordered a chest X-ray followed by a CT scan. The CT scan revealed a consolidation in the right upper lobe of the lung, which was an abnormal finding. However, the physician failed to take subsequent action over the next 18 months, during which time the patient returned to the physician for other ailments. The physician finally ordered a second CT scan 20 months later which revealed that the original consolidation was a malignancy and that the cancer had progressed to an inoperable stage. The patient's surviving family brought suit alleging that the physician failed to take proper action and that this delay caused the patient's death. The defendant physician denied liability. The jury awarded $3.75 million in damages against the physician.
Background: In this matter, the patient, an elderly man and former smoker, had a cough in September 2009 and sought treatment at a medical center. The physician initially ordered a chest X-ray and supplemented the X-ray with a CT scan, which showed aconsolidation in the right upper lobe of the lung. Such a consolidation is a significant and abnormal finding that necessitates additional care, as it might be a sign of lung cancer or pneumonia. However, the physician failed to order any follow-up testing at that time to rule out lung cancer or pneumonia.
Over the 18 months following the discovery of the consolidation, the patient continued to visit the same physician for other medical treatment. During these visits, the physician never ordered further testing to find out if the consolidation had resolved. The physician simply assumed that the consolidation was not cancer and conducted no follow-up to verify this assumption. The physician did order a second CT scan, but it was 20 months after the initial CT scan. This second scan allowed the physician to properly diagnose the patient with cancer, but at this point it was too late. The lung cancer had progressed from Stage I at the time of the initial scan, to Stage IV at the time of the second scan. At this point, the cancer was metastatic. Within a week, the cancer was noted to have spread to the patient's spine, which resulted in the patient losing the ability to walk. His physical symptoms grew increasingly worse, which required hospice care. The patient died nine months after the second scan.
The patient's widow, two sons, and a daughter brought suit. They claimed that the physician should have done additional testing to properly diagnose the cancer after the first CT scan revealed the abnormality. At that time, by eliminating other potential conditions and performing a subsequent CT scan to reconfirm the existence of the consolidation, a diagnosis of lung cancer would have been made andallowed for a simple surgical procedure to take out the mass when it was at Stage I. The plaintiffs alleged that treatment at Stage I was possible for this patient had the physician had properly diagnosed the condition. But for this improper diagnosis, the patient would have survived, they alleged. The physician defended on the basis that there were no signs or symptoms of lung cancer or pneumonia that would have required a follow-up from the CT scan. The physician claimed that he relied upon the report of a radiologist which did not advise follow-up and that the consolidation could have been a caused by several things. Experts on both sides debated the original stage of the cancer. The plaintiffs' experts said it was clinical Stage I in 2009, while the defense's experts used the "Doubling Time" theory to claim that the cancer was further along initially. The jury agreed with the plaintiffs, found the physician liable, and awarded the family $3.75 million.
What this means to you: Physicians must act when presented with a condition that mandates investigation. Many ailments do not resolve themselves on their own, and inaction can bring rise to liability when the standard of care requires more. If a reasonable physician given the same or similar circumstances would have provided follow-up testing, then simply waiting for an issue to resolve itself would likely result in medical malpractice. Here, the physician recognized the abnormality from the CT scan, but he did not take action to discover the source of the consolidation. His delay of 20 months clearly constituted medical malpractice. Expert testimony revealed that a reasonable physician given an abnormal chest X-ray and CT scan, particularly from an elderly patient with a history of smoking, should immediately think lung cancer. With this specific patient history and recognized abnormality, prompt action was required. Failing to take that action drastically worsened the patient's condition. If the physician originally had diagnosed the patient correctly, the cancer could have been promptly treated and perhaps cured. Lung cancer, unlike some other types of cancer, progresses in such a way that early treatment is required for high survival rates. Treatment after Stage I typically results in less than a 50% chance of survival, whereas treatment during Stage I can be a simple surgical procedure to remove the cancerous mass.
Blindly relying on the reports and advice of others might be a dangerous practice for physicians. One of the physician's defenses here was that he relied upon a radiologist's report regarding the consolidation, which did not advise follow-up. When making determinations based upon reports of others, physicians further both their own best interests and the best interests of their patients by being critical of these reports. Rather than simply accepting the findings as true, one should look to the basis for those findings to determine if they have sufficient factual support. A physician might subject himself or herself to liability by accepting the judgments of another physician as his or her own without further critical analysis. This might vary based upon the nature of the report and its author, but when the nature regards a potentially life-threatening illness or the author is less qualified than the physician, then the physician might be putting himself or herself at risk by not verifying the accuracy of the report.
This case also illustrates that causation plays an extremely important role in medical malpractice cases. A malpractice case will be successful only if the plaintiff can prove causation and damages along with the underlying negligent action. If the patient's harm is not caused by the physician's negligence, then the malpractice suit necessarily fails. The plaintiffs' presentation suggested that at the time of the original CT scan, the physician had a three-month timeframe to act when treatment likely would have resulted in survival. The defense, on the other hand, attempted to argue that there was a disconnect between the harm and the negligence. The defense claimed that the cancer was further developed in the original 2009 CT scan so that any mistake by the physician resulted in lesser or no damages. Had the patient's cancer originally been at a more advanced stage the physician's failure to diagnose would have been less egregious from a damages perspective because the treatment at that time would have been less likely to be effective.
The defense also used the "Doubling Time" theory, which generally states that specific cancers have specific growth rates and that as a general rule, the rate of growth is faster in the early stages of the cancer and slows down as the cancer becomes more advanced. This theory and the science regarding tumor proliferation and growth are themselves constantly evolving, and some courts have found that the theory to be not customarily relied upon by experts in the field, thus disallowing expert testimony regarding it. In this case, however, the court allowed the theory to be presented, but the jury apparently rejected the defense's posed theory and ruled in favor of the plaintiffs.
Finally, this case also shows that expert witnesses can play a key role in medical malpractice cases. Because jurors often have little or no knowledge of the standard of care a physician should be following, they must rely on other sources, and expert testimony is a major source that juries look to for guidance. Each side will have its own experts, who will often disagree about the proper standard of care. When this disagreement arises, the jury must decide which experts to rely upon. Thus, a knowledgeable expert with strong communication skills will be an important resource during trial. Physicians should work alongside counsel to select this expert, and the expert might help the case throughout litigation, not merely during the trial stage. Experts represent considerable investments in time and money, so interviewing or cross-referencing might be important to ensure that the expert is an appropriate match for the case. Potential methods for finding the right expert for litigation include networking with other attorneys or physicians for references, finding experts at trade shows or seminars held by those in the field, or searching local universities and colleges with specialized departments in the field. Professors might prove to be strong expert witnesses as they typically possess two qualities most sought in experts: knowledge and strong communication skills. Educating a jury through an expert is similar to educating students, as both require public speaking skills, thorough understanding of the field, and ample preparation for the testimony or lecture. These skills can translate into an impressive expert witness and an invaluable asset during litigation.
Expert testimony in this particular case, as with many medical malpractice cases, was indeed necessary for the plaintiffs' success. Causation, a required element for a medical malpractice claim, could not have been proved without this testimony. Each side presented expert testimony supporting its claim or defense, but the jury ultimately found one more believable than the other. An expert's credibility is important to establish and maintain throughout the course of litigation. The jury must believe an expert in order to give his or her medical theories weight. Wise counsel will attack the credibility of the opposing experts, and an expert who devotes his time solely to litigation might be viewed as a "hired gun" and arouse suspicion from the jury. In some cases, the facts might be so egregious that the expert testimony is merely a formality, but with many cases, a strong expert as opposed to a weak expert can make the case.
- Circuit Court of Montgomery County, MD. Case No. 366803V. Nov. 27, 2013.